Not a Scratch

Iraqi Insurgents Circulate the Lie That They Killed the Judge in Saddam’s Trial

Rumors have been flying that ISIS has executed the judge who presided over Saddam Hussein’s 2006 trial. The lies are just the latest attempt to destabilize a fractured country.

On January 29, 2006, Ra’ouf Rashid Abdul-Rahman took the center seat to preside over the trial of Saddam Hussein and his co-defendants. The case involved crimes committed by the regime against the citizens of Dujail, which had been a hotbed of dissent against the Sunni Ba’athist regime of Saddam.

Saddam and his henchmen murdered civilians after hasty show trials, deported entire families to concentration camps in the desert, and razed the orchards surrounding the town in a throwback to medieval style punishment. Judge Ra’ouf, who is Kurdish, had been set to preside over the far more complex case involving the Anfal genocide committed against the Kurds, but shifted trial chambers following the resignation of the first trial judge in the first trial of the Iraqi tribunal.

The Iraqis boldly televised every minute of the trial, and when Ra’ouf’s image flashed across their screens, viewers saw a stout, balding, 64-year-old Kurd from the town of Halabja. Though Saddam used chemical weapons against civilian villages on more than 50 documented occasions, Halabja was the epicenter of one of the regime’s most infamous chemical weapons attacks against civilians in broad daylight.

Judge Ra’ouf’s transfer to preside over the Dujail trial fortuitously preserved the appearance of impartiality because the victims in that case were primarily Shia and both the Anfal trial and the separate Halabja trial had non-Kurdish presiding judges.

A 1963 graduate of the fine law school at Baghdad University, Judge Ra’ouf worked as a lawyer in Baghdad and later the Kurdish city of Sulaymaniyah, and was appointed as the chief judge of the Kurdistan Appeals Court in 1996. Following his time on the Iraqi High Tribunal, he became the minister of justice in the Kurdistan Autonomous Region. The last time I saw him, in the spring of 2012, he rose from his desk with a surprising joviality and gave me a warm welcome. Today, he lives the quiet life of a retired judge who spends time with his family and enjoying the things he loves most in life.

YES, you read that correctly—Judge Ra’ouf is most definitely alive and well and completely safe in the comforts of home and hearth. The widespread press reports of his murder at the hands of the ISIS militants who now control a large swath of northwestern Iraq were completely fabricated.

Ironically Saddam’s execution and its sectarian overtones accomplished in two minutes and thirty six seconds the very thing that the defense had striven to achieve throughout the months of trial.

According to the oft repeated account by leading Ba’athist voices, Judge Ra’aouf attempted to flee for his life wearing dancer’s clothing and was executed in retaliation for presiding over the “martyrdom” of Saddam. Rubbish. He is alive and well, and a bit puzzled over the hoopla.

The widely reported myth of his demise provides a snapshot of the gap between the perceptions of the Dujail trial and the actual performance of the judges and lawyers who risked their lives to conduct some of the most controversial trials in world history under the glare of a watching media and in the midst of a raging sectarian conflict.

To say that Iraqi politics is complicated is like saying that Walt Disney was a smart fellow with good business sense. So too, the superficial impressions of the Dujail trial are frequently based on misperceptions or deliberate distortions. The idea that the whole spectacle was merely an extended judicial farce is simply false. I know because I was there.

The trial was not perfect by any means, and Michael P. Scharf and I make educated critiques in our definitive insider’s account of the trial, Enemy of the State: The Trial and Execution of Saddam Hussein. One thing is clear, though—Judge Ra’ouf fought to balance the rights of the defense with the orderly application of the relevant law from the first moments he assumed his position.

As he took the center seat on the bench, Judge Ra’ouf explained that he had been selected to replace the previous judge who had resigned “for administrative reasons.” The Iraqi media exploited its newfound independence to make brutally personal critiques of the trial’s early stages because the initial trial judge had granted too much leeway to the disruptive defense tactics and allowed the imperious presence of the former president of Iraq to dominate the proceedings.

Judge Ra’ouf’s extensive experience and his stern, uncompromising judicial temperament equipped him perfectly for his high profile role. He began by assuring the defense that the “defendants will be safe in our hands; for as Imam Ali said, ‘If you have the ability to oppress people, then you should remember the power of god over you.’” With respect to the lawyers, Judge Ra’ouf announced a new approach designed to cut down on disruptions. “The defense lawyers,” he said, “would have the right to ask questions, but not to make speeches, and questions must be via a lead Iraqi lawyer.”

That first day was a microcosm of what would become the central theme of the Dujail trial, which in fact remains resonant to this day as evidenced by the fictitious story of Ra’ouf’s execution. The defense lawyers and the defeated Ba’athists consistently sought to disrupt the orderliness of legal proceedings by injecting the politics of an ongoing insurgency into the courtroom. The defense strove to sustain the sectarian conflict raging in other parts of Iraq by injecting the veneer of sectarian vengeance into the courtroom.

Judge Ra’ouf was the buffer who strove to maintain an air of dignity and fairness in the face of overwhelming and persistent pressures.

When Barzan al-Tikriti leaped to his feed to demand release from custody based on his medical conditions, Judge Ra’ouf responded, “Listen, make this demand through your lawyers, and when we get it we’ll refer it to the medical committee. Now sit down!” Barzan remained standing and bellowed, “I will not sit down,” adding, “This court is illegal and the daughter of adultery.” Judge Ra’ouf ordered the guards to remove Barzan from the courtroom without further discussion.

Saddam then stood up and shouted, “Down with America! Down with the traitor! Long live Iraq!” He was followed by two of the remaining six defendants, and even one of the defense attorneys who all began to holler curses at the judge. What competent judge in the world would tolerate such open displays of defiance? Judge Ra’ouf banged his gavel repeatedly. “Sit down. Sit down.” Turning to the Jordanian attorney he roared, “How can you do this? You are a legal man, in a court of law, not a circus. You are inciting the defendants. I can hold you in contempt for this. You are inciting them. Can you do this in your country?”

Attorney al Armuti shouted back, “Yes, I do this in my country, we have our rights,” and he walked out of the courtroom. Saddam’s chief counsel, Khalil al-Dulaimi then told the judge, “If he leaves, we all leave.” To this, Judge Ra’ouf replied, “Okay, but if you go you cannot come back.” Saddam then interjected, “How can you conduct the trial without our lawyers?” Judge Ra’ouf answered, “They exceeded the limits of the court. We will use the court’s stand-by defense lawyers.”

Judge Ra’ouf explained that the decision to remove the lawyers was “according to article 158 of the code of criminal procedure, which permits the judge to do what is necessary in order to control the session.” Following these outbursts, one of the remaining four defendants softly addressed Judge Ra’ouf: “We are subjected to the court, we respect the court, but we need our lawyers.” Judge Ra’ouf told him, “The court lawyers will defend you and your rights,” pointing to the six court-appointed lawyers in the room. He then took a deep breath, slowly exhaled, and said, “Call the first witness.”

Throughout the trial, media accounts focused almost entirely on the chaotic exchanges that ensued as Judge Ra’ouf sought to restrain the antics of the defense and the deliberate attempts to disrupt the trial and intimidate both witnesses and counsel. After the defense lawyers boycotted the closing arguments despite his repeated warnings, Judge Ra’ouf called their bluff by holding trial as scheduled at the day and time announced to the defense. What responsible jurist would simply cancel trial because the defense decided not to do its job? Standing and pointing his bony finger at the appointed defense counsel who had risen to make a closing argument at the request of the court, Saddam said, “If you speak, you are the enemy of the state.”

Saddam’s decision to mount a political defense based on emotional appeals to Iraqi nationalism ultimately failed because Judge Ra’ouf strove to maintain an orderly process at the trial level. The subtext of his clashes with the defendants and their lawyers was his determination to preside over a transparent process that provided proof that the trial was not a political spectacle or a show trial rigged to produce prearranged political objectives.

Iraqi law provides that the Trial Chamber “is not permitted, in its ruling, to rely upon a piece of evidence which has not been brought up for discussion or referred to during the hearing, nor is it permitted to rely on a piece of paper given to it by a litigant without the rest of the litigants seeing it.”

Judge Ra’ouf warned the defense in open court, “From the beginning, we have said that this court is a transparent one and the defense team and defendants are allowed to express their attitude in a democratic way. No one is allowed to, whoever he is and under any name, to attack the court, its employees and the Iraqi people.” The five judges (with Ra’ouf as presiding judge) who heard the evidence in open court and wrote the trial verdict described the conduct of the defendants and their lawyers as “anarchist” and an “organized offensive course” intended to provoke the court. Despite the frequency of outbursts and disruptive conduct, the court expressly noted that it endeavored to demonstrate “magnanimity” and “tolerance … for the purpose of serving … justice,” and hence “disregarded all these fabrications and violations” by basing its decision on the evidentiary record.

Throughout the Al Dujail trial, the proceedings in the courtroom represented only the visible aspect of an enormously complicated choreography of behind the scenes work.

For example, trial seldom began at the appointed time of day due to the simple reality that the judges could not sit down while any detail was out of place. One day things were held up while the court awaited the appearance of a critical witness. The most critical person for a timely beginning of trial that day was a cat catcher on contract to the Amereicans. (Insurgents learned that by releasing stray cats, they could frustrate the dogs trained to detect explosives. The delays would cause chaos and snarl traffic at checkpoints, frustrate orderly schedules, and make tempers short. The release of cats demonstrated the art of asymmetric warfare perfectly; but the art of modern counter-insurgency requires adaption to a shifting enemy. The answer: bring in cat catchers. They were from Louisiana, and they were very good at what they did.) But the day courtroom observers waited for court to begin as the cat catchers did their work, they knew only that proceedings were delayed.

After 37 trial days spread out over nine months thanks to the defense’s repeated requests for delays, the Iraqi leadership executed Saddam (on a Shiite religious holiday and therefore in violation of Iraqi law). The atmosphere at the execution was celebratory and crude and the demeaning end to the dictator’s life that flashed around the world in no way represented the efforts of Judge Ra’ouf or the actual conduct of the trial. No western outlet translated the voice of the prosecutor that can be heard on the YouTube recording: “Stop. Show respect. This man is about to die.”

Ironically Saddam’s execution and its sectarian overtones accomplished in two minutes and thirty six seconds the very thing that the defense had striven to achieve throughout the months of trial. The Iraqi people deserved better because the powerful images created a lasting impression of illegitimacy in the minds of many who knew nothing else about the Tribunal’s processes.

The fabricated murder of Judge Ra’ouf is a similar attempt to link him to the larger sectarian conflict in Iraq. Just like the Ba’athist propaganda during trial that spread across worldwide media outlets, this represents nothing more than an effort to fuel political and ethnic divisions based on sensationalized and superficial impressions. The Iraqis deserve better—and sound policy cannot be based on such simple snapshots.

Michael A. Newton is a West Point graduate who serves as professor of the practice of law at Vanderbilt University Law School. His most recent book is Proportionality in International Law, published by Oxford University Press. During the Dujail trial, he shuttled back and forth to Baghdad to advise judges and lawyers.